Submission By Focus On Family Sa On Civil Union Bill

N URTUR I N G AN D PR OTE CTI N G FAM I LI E S

SO UTH ER N AF R I CA

06 October 2006

The Chairperson Home Affairs Portfolio Committee National Assembly Cape Town Dear Sir/Madam It would be appreciated if the accompanying submission relating to the Civil Union Bill B 262006 could be placed before the Committee. We agree to the Committee quoting from or referring to comments made and acknowledge that the Committee may have to release information contained in the submission. Yours faithfully Danie van den Heever Executive Chairman Focus on the Family Africa

PRIVATE BAG X1023, HILLCREST, 3650, KWAZULU NATAL, SOUTH AFRICA, TEL: (031) 7163300 FAX: (031) 7661113 Company Registration No. 1993/006937/08 Non Profit Organisation No 034-783-NPO E-MAIL: [email protected] www.safamily.co.za

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AN APPEAL NOT TO PROVIDE FOR THE SOLEMNISATION OF CIVIL PARTNERSHIPS OR TO BESTOW LEGAL RECOGNITION ON DOMESTIC PARTNERSHIPS BUT RATHER TO PRESERVE THE DEFINITION OF MARRIAGE AS CURRENTLY EXPRESSED IN SOUTH AFRICAN LAW.

SUBMISSION REGARDING THE CIVIL UNION BILL: PROPOSED LEGISLATION

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EXECUTIVE SUMMARY The proposals of The Civil Union Bill The Civil Union Bill proposes: A. that civil partnerships involving same-sex relationships be solemnised and be acknowledged by law. The formula used to effect the solemnisation can use the words ‘marriage’ or ‘civil union’. We appeal to Parliament to preserve the historical and natural definition of marriage. B. that domestic partnerships be given legal recognition and enjoy legal consequences. We appeal to Parliament not to bestow legal recognition on domestic partnerships. Analysis Marriage in South Africa is currently defined as 'the legally recognized voluntary union of a man and a woman for life to the exclusion of all others'. We believe this definition should continue to be supported by the law. South Africans are almost unanimously opposed to sexual relations between people of the same sex, and the government and courts should not feel pressured to change the law in response to the demands of a tiny, but vocal minority. Their manipulation of the political process, media and judiciary should be opposed. Research has demonstrated the benefits of monogamous heterosexual marriage for stable healthy relationships and successful upbringing of children - over all other alternatives such as same-sex parenting; single-parenting or co-habiting couples. It is therefore in the best interests of society that the state promotes traditional marriage rather than the other alternatives advanced in the Civil Union Bill. RECOMMENDATION We therefore recommend that: All the alternative proposals to legally recognise homosexual relationships and cohabiting unmarried couples through the proposed Civil Union Bill be rejected. Parliament instead pass a Constitutional Amendment to affirm the definition of marriage as being between a man and a woman.

4 AN APPEAL NOT TO PROVIDE LEGAL RECOGNITION FOR CIVIL UNIONS AND DOMESTIC PARTNERSHIPS The proposed Civil Union Bill will provide for: 1.

the solemnisation of civil partnerships for same and opposite sex couples and the legal consequences of such partnerships .

2.

the legal recognition of domestic partnerships for same and opposite sex couples and the enforcement of the legal consequences of such partnerships.

According to the proposed Bill a ‘civil union’ means a civil partnership or a domestic partnership. 1. Civil Partnerships A ‘civil partnership’ means the voluntary union of two adult persons of the same sex that is solemnised and registered in accordance with prescribed procedures. A civil partnership may be solemnised by a marriage officer and the couple concerned can choose whether they would prefer the civil partnership to be referred to as a civil partnership or a marriage during the solemnisation ceremony. If ‘marriage’ is the preferred term, the marriage officer must refer to marriage in reading the formula. The definition of marriage and its recognition as a human right The present definition of marriage in South African law is the western Judeo-Christian concept of marriage which reads as follows: 'Marriage is the legally recognised voluntary union of a man and a woman for life to the exclusion of all others'i. From this definition it follows that the South African law presently regards marriage as an opposite sex, monogamous institution. This view is in line with the tradition and experience of the vast majority of the nation. The United Nation’s Universal Declaration of Human Rights, the cornerstone of human rights throughout the world, clearly establishes in Article 16 that: ‘men and women of full age ……… have the right to marry and to found a family….The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Harvard law professor, Mary Ann Glendon, has stated that ‘…the Declaration is the single most important reference point for international discussions of how to order our future together in our increasingly conflict-ridden and interdependent world.’ii.

5 Other fundamental international legal instruments also recognize the right of men and women to marry and to found a family. For example, Article 23.2 of the International Covenant on Civil and Political Rights reads as follows: ‘The right of men and women of marriageable age to marry and to found a family shall be recognized. Unfortunately, the human rights recognized by the Universal Declaration, the International Covenant on Civil and Political Rights, and other international instruments are under constant attack. Referring to the Universal Declaration of Human Rights, Habib C Malik, son of one of the main authors of the Universal Declaration, wrote: ‘One disturbing phenomenon gaining ground today can best be described as the systematic hijacking of human rights to serve special interests and promote dubious agendas of a political and generally secular nature.’iii In examining the meaning of marriage and its relationship to democracy, individual rights and constitution law, neutrality is impossible. For some, sexuality is the starting point. Sexuality is essential for pleasure and intimacy. Marriage is, from this point of view, a state mechanism to encourage committed and stable relationships for those who might wish them. For persons who subscribe to this theory, the definition of marriage as it now stands is a matter of simple discrimination against homosexuals and lesbians. For others, marriage is the starting point. We exist as male or female, intended for community with one another. From this viewpoint, marriage is primarily a shared, socially beneficial way of life as male and female and a marriage recognition statute is a matter of simple definition.iv Answering arguments supporting legal recognition of homosexual unions Professor Barbara Cox, from the California Western School of Law, in her 1996 article claims that a statute which upholds heterosexual marriage only is unconstitutional because its purpose is to discriminate against same-sex couples and the only reason to support it is 'homophobia'. v In a paper in the Creighton Law Review (1998) vi Coolidge and Duncan put forward the view that in order to hold that a law supporting a heterosexual view of marriage is unconstitutional, it must be concluded: (a) that that law has a ‘homophobic’ purpose; (b) that by limiting marriage according to the traditional definition, government disables homosexuals in such a sweeping manner as to make them “strangers to the law”; (c) that none of the rationales offered in support of marriage have any reasonable connection to this definition and (d) that a law that views marriage as a unique male-female sexual community is blatantly irrational and based on bigotry. The implication of this would be that the majority of citizens in South Africa who identify with a heterosexual definition of marriage are 'anti-gay bigots'! Indeed, this implication would extend to the great majority of people around the world who know, rationally or intuitively, that marriage is the union between a man and a woman. The heterosexuality of marriage is not the result of prejudice. Rather it is a global, historical and measurable acknowledgment of the benefits married men and women bring to society by forming families. What is now needed is

6 a clear legal-political reaffirmation that marriage is a unique male-female community and social institution. Homosexuals are not being unfairly discriminated against by not being allowed to marry, since real marriage can only be between a man and a woman. Same-sex marriage is in fact an impossibility and the law should not recognise something which is not real. Such recognition would simply degrade the value of the recognition of real marriage. Do the majority homosexuality?

of

South

Africans

want

legal

recognition

of

It is argued that there is a trend in favour of recognition of homosexual relationships in South Africa, and various court cases and media reports are cited in support of this argument. A 'Social attitude survey' conducted by the Human Sciences Research Council in 2003 found that only one in every fifteen South Africans believed that it was 'not wrong' for two adults of the same sex to have sexual relationsvii. Why then should a small minority having liberal attitudes on homosexuality led by an even smaller minority of homosexual activists be allowed to impose their views on marriage on the rest of South African society? Evidence also tends to suggest that even amongst this tiny minority, even fewer actually have any interest in getting married. Rather, a few activists are through the law seeking social acknowledgement for their unnatural relationships. But the vast majority of South Africans don't accept same-sex relationships and don't want the government to do so either. The fact that this tiny minority has managed to get public attention shows only their capacity to manipulate the media, judiciary and political system rather than any substantial support. Our government should not waste effort on revising legislation to accommodate their demands. Benefits of real marriage for bringing up children Richard Duncan(1997)viii offers the following list of legitimate governmental interests that justify a law that marriage requires a man and a woman: (1) public morality; (2) encouraging childbirth within marriage; (3) the advantages of dual-gender parenting; and (4) educative effects. A change in the definition of marriage is a risky social experiment that will have serious implications for our society. Those who propose such a change ignore the fact that marriage is a social institution, not merely a vehicle to promote individual self-interest. Allowing such a change would send the message that marriage is a means to satisfy the personal desires of adult individuals, rather than an institution that is primarily, though not exclusively, about meeting the needs of children and the community.

7 Changing the definition of marriage would deny the significance of the right of every child to have a mother and a father, as well as the significance of the different roles mothers and fathers play in the rearing of children. Social science evidence shows clearly that men and women bring different but complementary skills and aptitudes to the critical partnership known as parenting. There is a large and growing body of evidence that indicates the benefit children gain from regular interaction with two parents of the opposite sex - their father and mother.ix While homosexual activists hold up studies that conclude that same-sex parents are no different than opposite-sex parents, a closer examination of these studies reveals a number of statistical and methodological flaws that put in doubt that assertion. In their review of 39 such studies, researchers Robert Lerner and Althea K. Nagai concluded that “these studies prove nothing. Therefore they should not be used in legal cases to make any arguments about ‘homosexual v. heterosexual’ parenting. Their claims have no basis.” x British researcher Patricia Morgan is even more blunt in her assessment of the research supporting same-sex parenting: “It is difficult to find such poor quality research as that which purports to show that same-sex parenting is at least as good if not superior to parenting by married couples. In many cases the word ‘research’ is a misnomer since often the only evidence consists of collections of anecdotes. This is often advocacy parading as research.” xi

The benefits of marriage result from the unique nature of the heterosexual bond. South African families will experience negative repercussions from the redefinition of marriage. In heterosexual marriage, husbands and wives benefit each other, resulting in better physical and emotional health, and financial well-being.xii Furthermore, fathers and mothers benefit their children in different yet complementary ways. Studies show that mothers and fathers interact differently with children and that both types of interaction are valuable and even necessary for healthy child development.xiii For example, research shows that a father who is involved in the life of his child contributes to higher educational achievement, more pro-social behaviour, and higher self-esteem.xiv To the benefit of both marriage and parenting, a heterosexual union also:     

recognises and addresses the fact of sexual difference and opposite sex attraction affirms the significance of sexual complementarily, as well as the important place of male-female bonding in human life; encourages the procreativity of heterosexual bonding; provides the unique atmosphere of heterosexual parenting which bonds children to their parents; and explains the rich genealogical nature of heterosexual family ties.xv

By their very nature, same-sex marriages cannot experience or provide the above marriage and parenting benefits found within a heterosexual marriage. The re-definition of marriage will result in a marked increase of same-sex unions and parenting.

8 Clearly, the research community has been able to adequately appraise and ascertain whether one family lifestyle is healthier than another. The empirical evidence falls overwhelmingly in favour of stable marriage and against all other alternative forms of family life: cohabitation, divorce, and stepfamilies. What is striking is that even though there is a very strong consensus on this issue in the academic research community, many of the cultural institutions, the gatekeepers of popular opinions and ideas, are not willing to make a considered and confirmed judgement on what is the best model for family life. They continue to play the role of family relativists, trivializing marriage as an institution and championing the idea that one form of the ‘family’ is just as good as another.xvi Should the proposed Civil Union Bill be enacted, our government will have chosen to abandon a long history of law recognizing marriage as the union of a man and a woman. In writing this new legislation they will be disregarding the basis for marriage that is so universal and so foundational to culture that it far predates the Parliament of South Africa. Our Parliamentarians were elected to represent the views of the entire nation. As Christians, who believe marriage to be a sacred, biblical institution and a divinely established covenant, most of the citizens of our nation would not be in favour of the proposed changes. Marriage is a concept that is inseparable from its societal and religious meanings and origins and as such we should not attempt to redefine it! 2.

Domestic Partnerships

A domestic partnership means a registered or unregistered domestic partnership between same and opposite sex couples. The negative social impact of cohabitation The law is a powerful tool. It clearly shapes our behaviour. While it is acknowledged that we are moving from a marriage culture to a ‘living together’ culture, evidenced by the fact that non-marital cohabitation has increased dramatically as an alternative form of family life, providing legal recognition for such relationships will result in explosive growth in the number of such relationships. Even more alarming will be the growth in the number of children being raised by parents in a cohabiting relationship. Alarming because research indicates that starting conjugal life in a cohabiting relationship, as opposed to marriage, sharply increases the probability of this first union ending in separation. xvii This will have negative effects on children born from this relationship. More serious is the finding reported in a special issue of the Journal of Comparative Family Studies that “children living with caretakers other than two biological parents are at greater risk for child maltreatment”. xviii In Canada, the increased legal recognition of cohabitation has had a clear impact on Canadian society. Through the 1980s the federal and provincial governments of Canada have increasingly treated cohabitation as equivalent to marriage. Statistics Canada tells us that the majority of young people today are entering their first conjugal union through cohabitation. Sociologist Zheng Wu suggests that: “the experience of cohabiting itself affects the attitudes of individuals towards marriage and decreases their propensity to marry.” xix

9 Other researchers have found that marriages preceded by cohabitation are twice as likely to end in divorce than marriages not preceded by cohabitation, even after factoring for other potential causes.xx This trend is especially troubling when the well-being of children is considered. In her analysis of data for Statistics Canada’s national Longitudinal Study on Children and Youth (NLSC), Nicole Marcil-Grafton indicates that children born to parents living in a cohabitational relationship are nearly five times more likely to see their parents separate by the age of 10 compared to children whose parents are legally married and have never cohabitated. Even if a child’s parents subsequently marry (either before or after the child was born), parents who have cohabitated are still twice as likely to separate than married parents who have never cohabitated. xxi Statistics Canada researchers have further found that men and women in cohabitational relationships are four times more likely to report spousal abuse than those in legally married relationships.xxii When it came to fatal domestic violence, “the rate of spousal homicide for women in common-law marriages was….more than 8 times higher than married couples.” xxiii The Canadian research findings are upheld by research findings conducted in several Western countries including New Zealand, Sweden, Australia and the United States. The Canadian experience provides valid evidence that the increased legal recognition of cohabitational relationships has not led to positive results. Is there any reason to think that the legal recognition of ‘registered and unregistered domestic partnerships’ is somehow going to be positive for South African society?

Recommendation Conjugal relationships outside of marriage should not be legally supported by the state in any form, either with civil unions or registered or unregistered domestic partnerships. Parliament should instead pass a Constitutional Amendment to affirm the definition of marriage as being between a man and a woman.

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ENDNOTES

South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships Volume 1 p 159. ii Mary Ann Glendon:A World Made New (New York: Random House, 2001) pp xvi- xvii. iii Eds:Teresa Wagner, Leslie Carbone, Fifty Years After the Declaration, (Lanham, New York, Oxford: University Press of America, 2001), p xvii. iv Robert P George & Gerard V Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 301 (1995). v Cox B: Nat’l J. Sexual Orientation 1996. vi David Orgon Coolidge, William C Duncan: Definition or Discrimination? State Marriage Recognition Statutes in the “Same-sex Marriage” Debate. Creighton University 1998 vii Human Sciences Research Council: South African Social Attitudes Survey. Unpublished 2003 study. Personal communication with Dr Stephen Rule. viii Richard F Duncan: The Narrow and Shallow Bite of Romer and the Eminent Rationality of DualGender marriage: A Response to Professor Koppelman,6 Wn & Mary Bill Rts. J. 147, 158-65 (1997) ix Glenn T Stanton : Why Marriage matters: Reasons to Believe in Marriage in Post-modern Society (Colorado Springs: Pinon, 1997) x Lerner Robert & Althea K Nagai, No Basis: What the Studies Don’t Tell Us About Same-sex Parenting. Washington D.C., Marriage Law Project, January 2001 xi The Christian Institute, News Release: Same-sex Parenting is Bad for Kids. February 6, 2002 i

xii

Linda J Waite & Maggie Gallagher, The Case for Marriage (New York: Broadway, 2000)

xiii

Kerig, P K & Cowan, P A: Marital Quality and Gender Differences in Parent-child Interaction, Developmental Psychology 29,6 (1993): 931-939 xiv

Horn W: Father Facts, editions 3 and 4, National Fatherhood Initiative, Gaithersburg, MD xv List provided by Dr Dan Cere, head of The Canadian Institute for Marriage and Family and professor at McGill University, Montreal. xvi Glenn T Stanton: Only a Piece of Paper? Public Policy Division, Focus on the Family, Colorado Springs,1995 xvii Le Bourdais Celine, Ghyslaine Neil & Pierre Turcotte: “The changing face of conjugal relationships” Canadian Social Trends. Spring 2000, Statistics Canada, Cat. No. 11-008 p15 xviii Malkin, Catherine and Michael lamb (1994): Child maltrreatment: A test of sociobiological Theory”, Journal of Comparative Family Studies, 25: 121-133 xix Zheng Wu, “Premarital Cohabitation and the Timing of First Marriage.” Canadian Review of Sociology and Anthropology, 1999, Vol. 36, No. 1, p. 109 –126 xx Hall D R & J Z Zhu, “Cohabitation and Divorce in Canada: Testing the selectivity hypothesis.” Journal of Marriage and Family, 1995, Vol. 57, p 421 - 427 xxi Marcil-Gratton Nicole, “Growing Up with Mom and Dad? The intricate family life course of Canadian Children,” July 1998, Ottawa, Statistics Canada Cat. 89-566- XIE xxii Bunge Valerie Pottie and Andrea Levett: “Family Violence in Canada: A Statistical Profile 2000, Statistics Canada, July 2000 p. 15 xxiii Bunge Valerie Pottie and Andrea Levett, ”Family Violence in Canada: A Statistical Profile 1998. Statistics Canada , May 1998, p. 29